What the old text allowed

The previous version of the subsection set the 80 percent threshold against the total votes in the association and permitted the declaration to specify “any larger percentage.” That bracketed phrase was struck by AB 396. It had no non-declarant component at all.

The arithmetic that made this a live problem is straightforward. A declarant holding, say, 30 percent of the votes in a partly-built or partly-sold community needed to bring only 50 of the remaining 70 percentage points to reach 80 — about 71 percent of the actual homeowners. A declarant holding 40 percent needed roughly 67 percent of them. The larger the developer's retained stake, the smaller the share of real owners required to end their own community.

Under the new text that arithmetic does not work. The declarant's votes can help reach the overall 80 percent, but they are excluded entirely from the second test. Eighty percent of the people who are not the developer have to agree, whatever the developer holds.

The one-way ratchet

The second sentence is unusual drafting and worth reading carefully:

“The declaration may require a larger percentage of the total votes in the association for approval, but termination requires approval by at least 80 percent of the votes allocated to units not owned by the declarant.”

Declaration autonomy survives in one direction only. A community that wants a 90 percent overall threshold may have one. A community whose declaration purports to set the non-declarant figure below 80 — or to omit the test — gets 80 anyway. The statutory floor is not waivable by the instrument that a declarant typically drafted.

The nonresidential carve-out is unchanged: a smaller percentage may be specified “only if all of the units are restricted exclusively to nonresidential uses.” Mixed-use projects do not qualify; the word is “all.”

Why Nevada wrote this now

Termination is the mechanism behind the condominium-deconversion transactions that have moved through Florida, Illinois and elsewhere: an acquirer assembles enough units to control the vote, terminates the association, and takes the land. The homeowner who did not want to sell is paid out and leaves. Where the votes needed can be assembled partly from a developer's own retained inventory, the effective consent of actual residents is lower than the headline percentage suggests.

AB 396's approach is not to raise the number — 80 percent is where it was — but to change whose 80 percent it has to be. That is a more targeted fix than a higher threshold would have been, because it leaves an ordinary owner-driven termination exactly as achievable as it was.

The pattern across the bill

This is not an isolated provision. AB 396 added a non-declarant component in the same style to NRS 116.2117(4), where a boundary or allocated-interest change now needs the consent of a majority of remaining owners “including a majority of the votes allocated to units not owned by the declarant.” And the rewritten rental-cap provision at NRS 116.335(3)(b) removes declarant-owned units from the denominator when calculating how many units may be leased.

Three separate sections, one drafting instinct: where a declarant holds votes or units, do not let that holding decide a question that belongs to the owners.

Practical notes

• Know your declarant count. Every one of these provisions turns on how many units the declarant currently owns. In a community that has been selling out slowly, that number changes, and so does the vote arithmetic.
• A termination agreement must still be executed and recorded. NRS 116.2118(2) requires execution “in the same manner as a deed” by the requisite number of owners, a specified expiry date, and recording in every county where part of the community sits — effective only on recordation.
• The carve-outs are unchanged: eminent-domain taking of all units, foreclosure against an entire cooperative of a security interest senior to the declaration, and the circumstances in NRS 116.2124.
• For an owner opposing a termination, the first question is now a counting question. If the declarant's votes were needed to clear 80 percent of the non-declarant pool, they were counted in the wrong column.